Louisiana Law ReviewVolume 44 | Number 2Developments in the Law, 1982-1983: A SymposiumNovember 1983

Criminal Trial ProcedureFrancis C. Sullivan

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Repository CitationFrancis C. Sullivan, Criminal Trial Procedure, 44 La. L. Rev. (1983)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol44/iss2/5

CRIMINAL TRIAL PROCEDURE

Francis C. Sullivan*

ATTACHMENT OF JEOPARDY-ARTICLE 592

A simple reading of article 592 of the Louisiana Code of CriminalProcedure' would lead one to believe that when a defendant pleads notguilty jeopardy attaches for purposes of determining double jeopardy whenthe first witness is sworn at the trial on the merits. Such is not the case,however, since the United States Supreme Court held in Crist v. Bretz'that the "federal rule that jeopardy attaches when the jury is empanelledand sworn is an integral part of the constitutional guarantee against doublejeopardy." ' As a result, this constitutional rule has been effectivelyengrafted into article 592 despite the failure of the legislature to alert theunwary to this substantial change in the law. The change, recognized bythe Louisiana Supreme Court in State v. Sermon," came before the Loui-siana First Circuit Court of Appeal again this term in State v. Albert.'

In Albert, the accused was charged in 1980 with the production ofmarijuana. 6 The defendant pleaded not guilty to the information, and thetrial date was set for May 6, 1981. After six jurors out of a total oftwelve had been selected, the prosecutor advised defendant that he in-tended to introduce at trial an inculpatory statement of the accused.' Thedefense objected on the basis that the statement had not been furnisheddespite appropriate discovery requests. After discussion on this point, theprosecution entered a nolle prosequi1 On May 15, 1981, the prosecutionfiled an identical bill of information, and the defendant again pleadednot guilty. Prior to trial he moved to quash, urging only speedy trialgrounds, and the court denied the motion. On October 28, 1981, withtwelve jurors selected, trial began and the state called several witnessesto testify. On October 29, 1981, the trial judge declared a mistrial becauseof possible prejudice on the part of one of the jurors. The defendantmade no objection at this point and made no motions. In April 1982,

Copyright 1983, by LOUISIANA LAW REVIEW.* Professor of Law, Louisiana State University.1. "When a defendant pleads not guility, jeopardy begins when the first witness is

sworn at the trial on the merits. When a defendant pleads guilty, jeopardy begins whena valid sentence is imposed." LA. CODE CRIM. P. art. 592.

2. 437 U.S. 28 (1978).

3. Id. at 38.4. 404 So. 2d 261 (La. 1981).5. 430 So. 2d 1279 (La. App. 1st Cir. 1983).6. LA. R.S. 40:967(A) (1977).7. See LA. CODE CRIM. P. art. 716. The prosecutor's action apparently complied with

the provisions of article 768 of the Code of Criminal Procedure.8. Article 691 of the Code of Criminal Procedure provides for dismissal of prosecu-

tions by the district attorney without the consent of the court. The term nolle prosequiis no longer used in the Code of Criminal Procedure.

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the defendant was tried a third time, resulting in the conviction leadingto this appeal. Defendant's argument, made on appeal for the first time,was that jeopardy attaches in a jury trial when the first juror is sworn.This argument was doomed to failure since the Louisiana Supreme Courtin Sermon9 had previously held to the contrary, and the appellate courthere properly followed that holding. With reference to the mistrial, whichof course came after jeopardy had attached since the jury had been selectedand sworn, the court held that the failure of the defendant to object atthat point amounted to an acquiescence in the mistrial, thus preventinghis later objection that a subsequent trial violated his double jeopardyrights. This result seems quite correct,'" and once again points up thenecessity of properly and timely objecting in order to properly preservegrounds for appeal."

DISCRETION TO PROSECUTE

In State v. Tanner,'2 the prosecution charged the defendant, by billof information, with two counts of negligent homicide, to which he entereda plea of not guilty. A grand jury subsequently returned "not a true bill'. 3

on the charges. The accused then filed a motion to quash the informa-tion on the ground that the state had agreed to accept the grand jury'sdecision about whether to prosecute. The Louisiana Supreme Court hadlittle difficulty in first holding that this issue was properly raised by mo-tion to quash under the general authority of article 531 of the Code ofCriminal Procedure,' 4 despite the fact that this ground does not appearin article 532 of the Code of Criminal Procedure" which sets out the

9. 404 So. 2d at 262.10. "When a mistrial is improperly ordered, the defendant must object at the time

and reserve a bill of exceptions. Otherwise he will be deemed to have acquiesced in thecourt's ruling. Art. 841." LA. CODE CRIM. P. art. 775, comment (d).

11. An irregularity or error cannot be availed of after verdict unless it was ob-jected to at the time of occurence. A bill of exceptions to rulings or orders isunnecessary. It is sufficient that a party, at the time the ruling or order of thecourt is made or sought, makes known to the court the action which he desiresthe court to take, or of his objections to the action of the court, and the groundstherefor.

The requirement of an objection shall not apply to the court's ruling on anywritten motion.

LA. CODE CRIM. P. art. 841.

12. 425 So. 2d 760 (La. 1983).13. Article 444 of the Code of Criminal Procedure provides in part: "A grand jury

shall have power to act, concerning a matter, only in one of the following ways: (1) Byreturning a true bill; (2) By returning not a true bill; or (3) By pretermitting entirely thematter investigated."

14. "All pleas or defenses raised before trial, other than mental incapacity to proceed,or pleas of 'not guilty' and of 'not guilty and not guilty by reason of insanity,' shall beurged by a motion to quash." LA. CODE CRIM. P. art. 531.

15. A motion to quash may be based on one or more of the following grounds:

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general grounds for the motion to quash.' 6 This is certainly in keepingwith the policy of the Code of Criminal Procedure and with the trendof decisions of the court in the recent past." Turning to the substanceof the objection, the court pointed out that the discretion to prosecute-whom, when, and how-rests completely with the district attorney.' 8

The relationship between the grand jury and the district attorney inthe prosecution process is often misunderstood. Under the provisions ofthe Louisiana Constitution' 9 and the Code of Criminal Procedure,2" an

(1) The indictment fails to charge an offense which is punishable under a validstatute.

(2) The indictment fails to conform to the requirments of Chapters 1 and 2of Title XIII. In such a case the court may permit the district attorney to amendthe indictment to correct the defect.

(3) The indictment is duplicitous or contains a misjoinder of defendants oroffenses. In such cases the court may permit the district attorney to sever theindictment into separate counts or separate indictments.

(4) The district attorney failed to furnish a sufficient bill of particulars whenordered to do so by the court. In such cases the court may overrule the motionif a sufficient bill of particulars is furnished within the delay fixed by the court.

(5) A bill of particulars has shown a ground for quashing the indictment underArticle 485.

(6) Trial for the offense charged would constitute double jeopardy.(7) The time limitation for the institution of prosecution or for the commence-

ment of trial has expired.(8) The court has no jurisdiction of the offense charged.(9) The general venire or the petit jury venire was improperly drawn, selected,

or constituted.LA. CODE CRIM. P. art. 532.

16. The court retreated from its reasoning in State v. Francis, 345 So. 2d-1120 (La.),cert. denied, 434 U.S. 891 (1977), that the State's breach of its agreement not to prosecuteis not a ground for a motion to quash. See Tanner, 425 So. 2d at 762 n.2.

17. See State v. Reaves, 376 So. 2d 136 (La. 1979).18. "Subject to the supervision of the attorney general, as provided in Article 62, the

district attorney has entire charge and control of every criminal prosecution instituted orpending in his district, and determines whom, when, and how he shall prosecute." LA.CODE CRIM. P. art. 61.

19. Prosecution of a felony shall be initiated by indictment or information, butno person shall be held to answer for a capital crime or a crime punishable bylife imprisonment except on indictment by a grand jury. No person shall be twicein jeopardy for the same offense, except on his application for a new trial, whena mistrial is declared, or when a motion in arrest of judgement is sustained.

LA. CONST. ART. I, § 15.20. A prosecution for an offense punishable by death, or for an offense punishable

by life imprisonment, shall be instituted by indictment by a grand jury. Othercriminal prosecutions in a district court shall be instituted by indictment or byinformation.

A prosecution for violation of an ordinance shall be instituted by affidavit.Other criminal prosecutions in a city court and prosecutions in a parish courtshall be instituted by affidavit or information. Criminal prosecutions in a juvenilecourt or family court shall be instituted by affidavit, information, or indictment.

LA. CODE CRIM. P. art. 382.

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indictment by a grand jury is required in order to commence any pros-ecution for a capital crime or one punishable by life imprisonment, andan indictment is an alternative method of commencement of felony pros-ecutions. In those circumstances where the crime may be commencedeither by indictment or information, the return of "not a true bill," i.e.,the refusal of the grand jury to return an indictment, does not in anyway preclude the district attorney from proceeding independently to filea bill of information, thus properly and effectively commencing a pros-ecution against the same accused for the same crime.2 The Tanner courtclearly recognizes the distinction and points out that the failure of thegrand jury to indict is in no sense and for no purpose an acquittal. Thesupreme court did find that a commitment of an assistant district attorneyto the effect that the charges against the accused would be dismissed ifthe grand jury brought in a no true bill was binding on the state. Thecourt also found that the defendant, on the basis of this promise by thestate, waived his privilege against self-incrimination and testified beforethe grand jury. Accordingly, the court refused to allow the state torepudiate this bargain and held that the defendant obtained complete ortransactional immunity from prosecution for the negligent homicides forall purposes other than prosecution for false statements or perjury. Inconcurrence, Justice Blanche stated he would have decided the case onthe basis of prosecutorial misconduct, since the defendant in testifyingbefore the grand jury was placed at an unfair disadvantage by informingthe state of all of his available defenses.22 Whether the state is wise inmaking such agreements with a potential defendant is questionable. Butonce made, there seems to be little question that the state must keep itsbargain. The precise fiction or actual basis for enforcing the agreementseems to be of less consequence than the maintenance of confidence inthe integrity of the prosecution and the quality of justice made availableby the system.

TIME LIMITATIONS-ARTICLE 579

Under the Louisiana Code of Criminal Procedure, the system of timelimitations upon trial is a very simple one. The period at issue here isthe period between commencement of prosecution by information or in-dictment and the commencement of trial. The general rule is set out inarticle 578 of the Code of Criminal Procedure:23 three years for capital

21. Article 386 of the Code of Criminal Procedure provides in part: "The failure orrefusal of a grand jury to indict a defendant does not preclude a subsequent indictmentby the same or another grand jury, or the subsequent filing of an information or affidavitagainst him, for the same offense." See also LA. CODE CRIM. P. art. 444, comment (b).

22. 425 So. 2d at 764 (Blanche, J., concurring).23. Except as otherwise provided in this Chapter, no trial shall be commenced:

(1) In capital cases after three years from the date of institution of theprosecution;

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cases, two years for felony cases and one year for misdemeanors. Underthe provisions of article 579 of the Code of Criminal Procedure 4 theseperiods are "interrupted" in two specific situations. The LouisianaSupreme Court in this term had the opportunity to interpret both of theseprovisions. In State v. Nations.25 the supreme court, in a per curiam opin-ion, held that the state bears a heavy burden of showing that it is excusedfrom trying an accused on a charge within the period required by arti-cle 578. "6 In Nations, the defendant was charged with a misdemeanor inDecember 1980 but was not tried until April 1982. At trial the defendantmoved to quash the information on the basis that more than One year,the period provided in article 578, had passed since the prosecution hadcommenced. The supreme court, in reversing the trial court's denial ofthe motion to quash, held that the evidence did not warrant a findingthat the defendant absented himself from his usual place of abode withinthe state with the purpose of avoiding detection, apprehefision or pros-ecution, as provided in article 579 as a ground for interruption. Althoughthe accused here did change apartments on two occasions, the court foundthat he notified his bonding company and completed a postal change ofaddress form in each case, and that his telephone number at all timeswas correctly listed with directory assistance. He was at all times employedby the same employer as on the date of his arrest, and his employer'saddress appeared on the face of his bond.

All in all, the argument of the state that the sheriff's Office attempt-ed to serve the defendant with notice of arraignment but could not com-plete the service was an unacceptable excuse for the failure to meet the

(2) In other felony cases after two years from the date of institution of theprosecution; and

(3) In misdemeanor cases after one year from the date of institution of theprosecution.

The offense charged shall determine the applicable limitation.LA. CODE CRIM. P. art. 578.

24. The period of limitation established by article 578 shall be interrupted if:(1) The defendant at any time, with the purpose to avoid detection, apprehen-

sion, or prosecution, flees from the state, is outside the state, or is absent fromhis usual place of abode within the state; or

(2) The defendant cannot be tried because of insanity or because his presencefor trial cannot be obtained by legal process, or for any other cause beyond thecontrol of the state.

The periods of limitation established by Article 578 shall commence to run anewfrom the date the cause of interruption no longer exists.

LA. CODE CRIM. P. art. 579.25. 420 So. 2d 967 (La. 1982) (per curiam).26. In dissent, Justice Lemmon disagreed that the state should have a heavy burden.

As he put it, the "question is more one of statutory interpretation, and prescription statutesshould be strictly construed against the party who pleads prescription." Id. at 968 n.I (Lem-mon, J., dissenting).

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time requirement of article 578. As a comment to article 5797 indicates,this ground for interruption of the time limitation is simply a restatementof the general fugitive from justice rule.28 It would certainly seem thatby no stretch of the imagination could the defendant in this case be con-sidered to be a fugitive from justice, and this was simply a classic caseof failure on the part of the state to make an adequate and timely in-quiry into the defendant's whereabouts. Such an investigation should bea minimum requirement when the effect of any loose interpretation ofarticle 579 will be a judicial extension of the periods mandated by thelegislature in article 578. Such extension should not be allowed exceptin the most compelling cases.

In State v. Amarena,29 the Louisiana Supreme Court was faced withthe case of a defendant who was charged on August 20, 1979 with armedrobbery in Louisiana. On November 8, 1979, defendant was sentencedto four years in federal custody after pleading guilty in the United StatesDistrict Court of the Northern District of California to interstate transpor-tation of stolen goods.3" In January 1980, the Jefferson Parish districtattorney requested extradition of the accused from the state of Califor-nia, but this was of course impossible, and the district attorney was notifiedthat Amarena was in federal custody. In May 1980, an arrest warrantfor the defendant was sent to the federal officials to be lodged as a de-tainer, and the Jefferson Parish Sheriff's Office was notified that the de-tainer was filed and that the defendant's discharge date was scheduledfor September 25, 1982. The accused was notified by federal officials ofthe untried charges against him in Louisiana and was advised of his rightson May 13, 1980. On April 14, 1981, defendant's California attorney wroteto the Jefferson Parish District Attorney requesting a Louisiana trial pur-suant to the provisions of the California Penal Code and requesting aspeedy trial. On June 1, 1981, a writ of habeas corpus and ad prosequen-dum was directed to the regional director of the Federal Bureau of Prisonsin California requiring the production of the defendant for arraignmenton July 1, 1981. Defendant failed to appear for arraignment on that date,and the prosecution was granted an indefinite continuance. After furthercorrespondence, the Jefferson Parish Sheriff finally obtained custody ofthe defendant, who then appeared for arraignment on May 5, 1982, andentered a plea of not guilty. Trial was set for June 21, 1982.

The supreme court, speaking through the Chief Justice, held that themere fact that a defendant is being detained in a state or federal prison

27. "Clause (1) of this article simply restates the fugitive from justice rule containedin Art. 575. See Comments thereunder." LA. CODE CRIM. P. art. 579, comment (b).

28. See LA. CODE CRIM. P. art. 575.29. 426 So. 2d 613 (La. 1983).30. Apparently, the proceeds of the Louisiana robbery constituted the basis for the

federal crime.

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will not alone interrupt prescription." The court held that the state didnot follow the requirements of any statute or federal regulation in at-tempting to obtain custody of the defendant for prosecution, even thoughhis presence in Louisiana was "easily obtainable."3 2 Thus, despite the factthat prescription was originally interrupted when the accused fled toCalifornia, the interruption ceased when the state learned of the incarcera-tion, location, and availability of the defendant, and the two-year periodbegan to run again from that time. This interpretation follows from thelast sentence of article 579, which provides that "[t]he periods of limita-tion established by Article 578 shall commence to run anew from the datethe cause of interruption no longer exists." 33 The court found that thestate learned of the location and availability of the accused in Februaryof 1980 and that the arraignment of defendant on May 5, 1982, and thusthe setting of trial for June 21, 1982, clearly fell beyond the permissibletwo-year period. Accordingly, article 578 was violated and the motionto quash should have been granted.3"

Amarena represents a classic example of the general rule: the inter-ruption operated to extend the limitation period, followed by the termina-tion of the period of interruption so that prescription once more beganto run against the state. While this case places a premium on close coopera-tion between the various law enforcement agencies and the prosecutingofficials, as well as state and federal prison authorities, it seems to bethe only possible answer to a very difficult problem brought about bythe free movement of people throughout the United States and theavailability of means to obtain the presence of prisoners for trial. Thesolution seems to be in keeping with the stated policy of the Code ofCriminal Procedure and should do much to clarify what has been a mat-ter of much confusion in the past.

The Louisiana Habitual Offender Law" does not provide for anyspecific prescriptive period. This omission is probably based upon the

31. See State v. Devito, 391 So. 2d 813 (La. 1980).32. 426 So. 2d at 617.33. LA. CODE CRIM. P. art. 579.34. Justices Lemmon and Marcus dissented. 426 So. 2d at 619 (Lemmon & Marcus,

JJ., dissenting).35. If, at any time, either after conviction or sentence, it shall appear that a per-

son convicted of a felony has previously been convicted of a felony under thelaws of this state, or has been convicted under the laws of any other state orof the United States; or any foreign government or country of a crime, which,if committed in this state would be a felony, the district attorney of the parishin which subsequent conviction was had may file an information accusing theperson of a previous conviction. Whereupon the court in which the subsequentconviction was had shall cause the person, whether confined in prison or other-wise, to be brought before it and shall inform him of the allegation containedin the information and of his right to be tried as to the truth thereof accordingto law and shall require the offender to say whether the allegations are true. If

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assumption that, in the usual situation, the district attorney will file theappropriate bill of information immediately after conviction. However,despite the fact that the law provides that the information may be filed"at any time, either after conviction or sentence," 3 the Louisiana SupremeCourt has held that the bill must be filed within a "reasonable time"after the prosecutor knows that a defendant has a prior felony record.37

After conviction of a particular crime, the defendant is entitled to knowthe full consequences within a reasonable time, and the court has heldthat the enhancement of the sentence through the habitual offender pro-visions should not be unduly delayed.38 The question is, of course, whatis a reasonable time.

The Louisiana Supreme Court had occasion to examine this questionin State v. Broussard,3 where after the defendant pleaded guilty to acharge of simple burglary, he was sentenced in accordance with a pleabargain. Thirteen months later the district attorney filed an informationcharging the defendant with three prior felony convictions, and the defen-dant's motion to quash the information was denied. Evidently, all of thefacts upon which the information was based were available to the districtattorney at the time of the original sentencing, and no justification ex-isted for delaying the filing of the habitual offender proceeding. Underthese circumstances the court, with great restraint, stated: "[w]e do notconsider that the district attorney acted reasonably in delaying the institu-tion of the habitual offender proceedings." 0 If the habitual offenderenhancement theory is to have any significant effect as a sentencing tool,it seems obvious that it must be used in connection with a particular con-viction and immediately upon the conviction. To allow delay in the filingof the information is simply to provide the prosecutor with a device forbringing a separate and distinct enhancement prosecution against the ac-cused at any time. It is submitted that this was not and is not the pur-pose of the habitual criminal statutes, and an appropriate amendment plac-ing a time limit in the law would be in order.

he denies the allegation of the information or refuses to answer or remains silent,his plea or the fact of his silence shall be entered on the record and the judgeshall fix a day to inquire whether the offender has been convicted of a priorfelony or felonies, as set forth in the information. If the judge finds that hehas been convicted of a prior felony or felonies, or if he acknowledges or con-

fesses in open court, after being duly cautioned as to his rights, that he has beenso convicted, the court shall sentence him to the punishment prescribed in thisSection, and shall vacate the previous sentence if already imposed, deducting from

the new sentence the time actually served under the sentence so vacated.LA. R.S. 15:529.1(D) (1981).

36; LA. R.S. 15:529.1(D) (1981).37. State v. Wilson, 360 So. 2d 166 (La. 1978); State v. Bell, 324 So. 2d 451 (La. 1975).38. State ex rel. Williams v. Henderson, 289 So. 2d 74 (La. 1974).39. 416 So. 2d 109 (La. 1982).40. Id. at 111.

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PREJUDICIAL PUBLICITY

The problems of alleged prejudicial publicity are primarily problemsof evaluating precise and variable factual situations. There are, however,lessons to be learned from a close reading of the opinions of the Loui-siana Supreme Court dealing with the many and varied situations presentedin this area. In State v. Morris,"1 the defendant was originally convictedof second degree murder, but the conviction had been reversed. Uponremand, the defendant was convicted of manslaughter and adjudicateda third-felony offender. The defendant complained that the trial judgeoverruled her motion for a change of venue without considering thetranscript of a voir dire examination which occurred in a trial held onemonth before the present one and in which a fair and impartial jury couldnot be selected, requiring the declaration of a mistrial. In the present case,the trial judge deferred ruling on the motion for change of venue untilafter voir dire, and when a jury was successfully selected, denied the mo-tion. Justice Dennis, writing for the court, made it clear that the merefact that a jury was successfully selected does not render the change ofvenue question moot. To be entitled to relief, the accused has the burdenof establishing that he cannot obtain a fair trial in the particular parish.4 2

The traditional standard in this area is that it is sufficient if a juror canlay aside his impression or opinion and render a verdict based on theevidence presented in open court.4 3 However, as the Code of CriminalProcedure clearly points out" the defendant is not foreclosed on a mo-tion for change of venue simply by the answers given by the prospectivejurors. The task for a defendant is not an easy one when a prospectivejuror asserts impartiality but may actually be prejudiced against the ac-cused. The task of showing actual prejudice is indeed formidable, if notimpossible, in most cases. Absent such a showing, rarely will a courtpresume that the defendant could not obtain a fair trial because of publici-ty, and thus require a change of venue.45 Here the court found nothing

41. 429 So. 2d Ill (La. 1983).42. State v. Wilkerson, 403 So. 2d 652 (La. 1981); State v. Bell, 315 So. 2d 307 (La.

1975). Article 622 of the Code of Criminal Procedure provides in part: "A change of venueshall be granted when the applicant proves that by reason of prejudice existing in the publicmind or because of undue influence, or that for any other reason, a fair and impartialtrial cannot be obtained in the parish where the prosecution is pending."

43. Murphy v. Florida, 421 U.S. 794 (1975); Irvin v. Dowd, 366 U.S. 717 (1961); LA.CODE CRIM. P. arts. 621-627; see 1I ABA, STANDARDS FOR CRIMINAL JUSTICE std. 8-3.5(b)(2d ed. 1980) [hereinafter cited as STANDARDS].

44. Article 622 of the Code of Criminal Procedure provides in part: "In deciding whetherto grant a change of venue the court shall consider whether the prejudice, the influence,or the other reasons are such that they will affect the answers of jurors on the voir direexamination or the testimony of witnesses at the trial."

45. Dobbert v. Florida, 432 U.S. 282 (1977); State v. David, 425 So. 2d 1241 (La.1983); State v. Goodson, 412 So. 2d 1077 (La. 1982).

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to justify a presumption that a fair trial was impossible because of a "trialatmosphere utterly corrupted by press coverage.' '46 The defendant admit-ted that there was no actual prejudice, influence or other reasons existingin the community which would affect the jurors' answers on voir dire,and the supreme court's independent examination of the voir dire reachedthe same conclusion. The failure to transcribe and consider the priorvoir dire examination was "perhaps an error," said the court, but onenot prejudicial because of the intervening time period. As a result, thetrial judge did not abuse his discretion in denying the motion for changeof venue. The result clearly seems correct. In the future, the prudent trialjudge would do well in a similar situation to consider the transcript ofany prior voir dire examination in ruling on subsequent motions.

In State v. Brogdon,"7 the Louisiana Supreme Court made it clearthat, despite the mandatory language of article 621 of the Code of CriminalProcedure, ' 8 a contradictory hearing is not required on a motion for changeof venue where, without defense objection, the trial judge defers actionon the motion until after the voir dire examination of prospective jurors.In Brogdon, the defendant did not object to the judge's ruling at anytime nor did he reurge his motion for change of venue before, during,or after voir dire. 9 Pointing out that the burden is upon the defendantto prove there exists such prejudice in the minds of the people of thecommunity that a fair and impartial trial is impossible," the court heldthat the failure to object to the action deferring the motion and the failureto reurge the motion resulted in a failure to sustain defendant's burdenof proof. The lesson should be crystal clear: If a defendant wishes topresent evidence on a motion for change of venue, the motion must bemade in accordance with article 621, proper and timely objections shouldbe made to the action of the trial court in postponing a contradictoryhearing to await the results of the voir dire examination, and further,the defendant must reurge the motion for change of venue at the voirdire examination of prospective jurors. Failure to do so will result in awaiver of the motion without the opportunity to present any evidencewhich may be available on the issue.

In State v. Harper," defense counsel found himself in a most unusualand uncomfortable "catch-22" situation, and even the supreme courtagreed that he was in a damned-if-you-do-damned-if-you-don't situation.

46. 429 So. 2d at 117.47. 426 So. 2d 158 (La. 1983).48. Article 621 provides in part: "A contradictory hearing shall be held upon the

motion."49. LA. CODE CRIM. P. art. 841, quoted supra note 11; see State v; Bolton, 354 So.

2d 517 (La. 1978).50. LA. CODE CRIM. P. art. 622; State v. Wilkerson, 403 So. 2d 652 (La. 1981).51. 430 So. 2d 627 (La. 1983).

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The defendant was charged with several serious offenses, and a specialjury venire was summoned in Lincoln Parish for these particular trials.The problem arose because the same jury venire from which the jury wasselected at his second trial had witnessed the jury voir dire in his firsttrial. The entire panel was present in court and observed the completejury voir dire examination conducted in the first trial. After the first jurywas selected those persons not selected remained on call, and the defen-dant was forced to select the jury for the second trial from this group.The second jury panel also had access to the newspaper and radio ac-counts of the first trial and saw the defendant sitting at the defense tableduring approximately one and one-half days of jury selection for the firsttrial. In the first trial, the defendant moved for and was denied individualvoir dire examination of prospective jurors outside the presence of theothers, and in the second trial, the defendant moved for a continuanceand for a change of venue, both of which were denied. The defendant'sproblem in the voir dire examination at the second trial was that he neededto explore whether or not the prospective jurors had any knowledge ofwhat had taken place at the first trial. The defendant was unable to askmeaningful questions because to do so would almost certainly discloseto the prospective juror, as well as to all others in the courtroom, whathad in fact transpired. This made it almost impossible to intelligently ex-ercise challenges for cause and peremptory challenges.

The supreme court quite properly reversed the second conviction onthe basis that it was a violation of due process to have denied the motionfor continuance or change of venue considering the unique circumstancesand the publicity involved in the case. Interestingly, Justice Calogero,writing for the court, suggested that the trial judge might have taken stepsto avoid or minimize the potential for prejudice in the case withoutspecifically deciding what "might have been preferable, and whether any,or which, would have been sufficient to avoid prejudice to thedefendant." 5 2 The court pointed out three possibilities: (1) the trial judgemight have allowed individual private voir dire examination of prospec-tive jurors in the first trial; (2) he might have granted defendant's motionfor change of venue, thus assuring that different jurors would be available;or (3) he could have granted a continuance in the second trial, also assur-ing a different jury venire through lapse of time. The court simply statedthat some preventive measures were essential, the choice of which is withinthe trial judge's discretion in the first instance, leaving open and for thetrial judge's discretion the question of what was the proper step in theseparticular circumstances.

This writer believes that the continuance, which would simply haveproduced a new venire, would be a possible solution but perhaps not the

52. Id. at 639.

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best solution. Continuance would certainly have avoided the problem thatarose in this case, but it also would have unfortunately and perhaps un-necessarily delayed the proceedings for some unknown period, with allthe undesirable possibilities, including renewed publicity, that delay mightproduce. Granting the motion for a change of venue would likewise avoidthe problem by having the trial take place in another parish with anotherjury venire, but of course this solution creates problems of expense, delay,and inconvenience to all parties concerned. The simplest and most effec-tive way to avoid the problem is to allow the individual voir dire ex-amination of each prospective juror out of the presence of all other pro-spective jurors." This would remove the prejudicial effect of having allof the other prospective jurors present in the courtroom observing theproceedings and listening to the voir dire examination, and yet it wouldhave a minimal effect insofar as delay and expense are concerned. Thereseems to be no good reason why the device of individual voir dire shouldnot be more readily used by trial judges.4

RIGHT TO COUNSEL

In State v. WaShington," defendant was charged as a multipleoffender;", in one of the prior convictions charged, 7 the defendant hadrepresented himself after he had dismissed his court appointed attorney.The original court minutes did not reflect that Washington had waivedhis right to court appointed counsel, and the trial judge ordered theminutes revised to show that Washington did waive that right. Both theoriginal minutes and the amended minutes indicated that the trial judgeadvised the defendant of his right to court appointed counsel, but therecord did not, as it must, indicate that the waiver of this right was made

53. See 11 STANDARDS, supra note 43, std. 8-3.5(a). Standard 8-3.5(a) provides:The following standards govern the 'selection of a jury in those criminal cases

in which questions of possible prejudice are raised.(a) If there is a substantial possibility that individual jurors will be ineligible

to serve because of exposure to potentially prejudicial material, the examinationof each juror with respect to exposure shall take place outside the presence ofother chosen and prospective jurors. An accurate record of this examination shallbe kept by court reporter or tape recording whenever possible. The questioningshall be conducted for the purpose of determining what the prospective juror hasread and heard about the case and how any exposure has affected that person'sattitude toward the trial, not to convince the prospective juror that an inabilityto cast aside any preconceptions would be a dereliction of duty.

54. See Sullivan, Developments in the Law, 1981-1982-Criminal Trial Procedure, 43LA. L. REV. 375, 392-93 (1982).

55. 421 So. 2d 887 (La. 1982). The court was comprised of Chief Justice Dixon, AssociateJustices Blanche, Lemmon, and Marcus, and Judges Byrnes and Williams of the fourthcircuit as Associate Justices Pro Tempore.

56. LA. R.S. 15:529.1 (1981).57. CRIMINAL CODE: LA. R.S. 14:56 (Supp. 1983) (simple criminal damage to property).

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intelligently and voluntarily." The major problem was that the minutesdid not show in any way that the trial court had adequately informedthe defendant, as required by prior cases, 9 of the dangers and disadvan-tages of exercising his Farettal° right to represent himself. The LouisianaSupreme Court therefore found that the minutes, even as amended, wereinsufficient to prove the prior conviction for enhancement purposes andreversed the multiple offender finding. In dissent, Justice Lemmondisagreed with the requirement that the record contain a colloquy whichreveals the dangers of self-representation. He would allow the "totalityof circumstances" to be considered in determining whether or not defen-dant has made an intelligent decision to represent himself based upon anawareness of the dangers of self-representation.'

There seems to be no reason why the entire set of circumstances sur-rounding the making of this decision should not be considered in deter-mining this issue. There is little reason to believe that mere statements,formulae, and colloquies can be any more meaningful in illuminating theunderstanding or knowledge of an individual.62 They provide only an easymethod of avoiding the real and difficult underlying problem. If therewere ever an area where the sound discretion of the trial judge shouldbe given support, this writer believes waiver of rights is such an area,and the decision of the trial judge should be reversed, not on the basisof technicalities, but only when an abuse of discretion is clearlydemonstrated.

The problems associated with the withdrawal of counsel are illustratedin State v. Wisenbaker.6 3 A nonresident defendant was charged with theftand extradited to Louisiana. The defendant retained two Texas lawyersas well as local counsel. The local attorney filed a pretrial discovery mo-tion, but subsequently was allowed to withdraw from the case. The pros-ecutor then filed a motion to traverse, and since neither defendant norcounsel appeared for the hearing, the judge dismissed the defense mo-tions. On the subsequent trial date, defendant appeared but was notrepresented; the two Texas lawyers failed to appear, and the Louisianalawyer had been permitted to withdraw. The defendant at this time ob-

58. State v. Hegwood, 345 So. 2d 1179 (La. 1977).59. City of Monroe v. Wyrick, 393 So. 2d 1273 (La. 1981); State v. Bell, 381 So.

2d 393 (La. 1980).60. Faretta v. California, 422 U.S. 806 (1975).61. 421 So. 2d at 891 (Blanche & Lemmon, JJ., dissenting).62. Only the incurable optimist would hold that the required statements in such areas

as confessions, see Miranda v. Arizona, 384 U.S. 436 (1966), and guilty pleas, see Boykinv. Alabama, 395 U.S. 238 (1969), have produced much in the way of solutions to the par-ticular waiver problems involved.

63. 428 So. 2d 790 (La. 1983). Apparently defendant had the assistance of counselfor a portion of the trial, which the court held to be "not of controlling significance."Id. at 794 n. 11.

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jected to going to trial without an attorney and requested a continuancein order to obtain counsel, which was denied.6" The Louisiana SupremeCourt pointed out that the defendant cannot be charged with a waiverof right to counsel unless he was responsible for the nonappearance,"5

and that the facts in this case did not establish any voluntary waiver ofhis right to counsel or any conduct which might be deemed to constitutean implied waiver. Since the defendant was denied the assistance of counselduring his trial, the court reversed the conviction." The court commentedthat the problem could have been avoided at the hearing on the discoverymotions when it first became apparent that the accused was unrepresentedby Louisiana counsel.67 The Court suggested that the trial judge shouldhave at that point either required defendant to obtain a Louisiana at-torney within a reasonable time, obtained a waiver of counsel or appointedcounsel to represent the defendant."' Any one of these actions would surelyhave been effective to protect the rights of the accused and would haveavoided getting to the trial date without having either local counsel ora valid waiver of counsel. The major error, however, probably took placeat the time the Louisiana lawyer was allowed to withdraw from the case.As the court pointed out, trial judges may refuse to grant a motion towithdraw until another lawyer has been either retained or appointed.69

If this simple rule were observed rigorously, it is difficult to see how aproblem like that in Wisenbaker could arise. In fact, the attorney herewas allowed to withdraw by a district judge other than the trial judge(which only complicates matters) and the rule might well be that onlythe judge who will try the case should grant a motion of counsel towithdraw. The court's condemnation of the attorney's conduct is worthrepeating: "[T]he record here portrays an individual abandoned by counselwho had previously indicated a willingness and ability to representhim . .. ."10 More is expected of counsel.7 '

64. After the state had prosecuted its case, an attorney from New Orleans appearedand attempted to assist the defendant. Id.

65. City of Baton Rouge v. Dees, 363 So. 2d 530 (La. 1978).66. The court remanded the case for a new trial. 428 So. 2d at 794.67. This comment is not intended to criticize a competent trial judge, but rather

to point out one spot in the proceedings where the protection of defendant's rightto counsel broke down, despite diligent efforts by the prosecutor and the judgeto bring the matter to trial on the appointed date. One can easily understandwhy the trial judge, at this point in the proceedings, did not anticipate the possibilitythat retained counsel from Texas would not appear for trial, inasmuch as he hadappeared twice for preliminary matters.

Id. at 792 n.4.68. The judge could not, of course, compel the attendance of the nonresident counsel. Id.69. Id. at 792 n.6. Had the trial judge known defendant was not represented by Loui-

siana counsel, he could have appointed such or required defendant to retain counsel, whichwould have enabled the trial judge to compel counsel's attendance. Id. at 793 n.8.

70. Id. at 793 (emphasis deleted).71. It should be noted that the supreme court limited its holding as follows:

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In Morris v. Slappy," the United States Supreme Court consideredwhether an accused who has had appointed counsel assigned and hasdeveloped a relationship with this attorney has a right to a continuanceuntil that particular attorney is available to try the defendant's case. InMorris, the original deputy public defender appointed to represent theaccused appeared at the preliminary hearing and supervised an extensiveinvestigation. Shortly before trial, however, he was hospitalized foremergency surgery and another deputy was assigned. The trial judge deniedthe defendant's motion for continuance which would have allowed theoriginal public defender to try the case, and after conviction, the UnitedStates Ninth Circuit Court of Appeals73 held that the denial violated defen-dant's sixth amendment right to the assistance of counsel. Chief JusticeBurger, speaking for the Court, disposed of this ruling as follows:

The Court of Appeals' conclusion that the Sixth Amendmentright to counsel "would be without substance if it did not in-clude the right to a meaningful attorney-client relationship" . . .is without basis in the law. No authority was cited forlthis novelingredient of the Sixth Amendment guarantee of counsel, and ofcourse none could be. No court could possibly guarantee that adefendant will develop the kind of rapport with his attorney-privately retained or provided by the public-that the Court ofAppeals thought part of the Sixth Amendment guarantee ofcounsel. Accordingly, we reject the claim that the Sixth Amend-ment guarantees a "meaningful relationship" between an accusedand his counsel."'

Although the language about "meaningful relationship" is clearly dictain this case,75 the majority of the Court, in a proper case, would prob-ably have no difficulty holding that the scope of the sixth amendmentright is limited solely to the provision of a reasonably prepared compe-tent attorney.

Those interested should note that the Louisiana legislature in the 1983Regular Session amended sections 145 and 146 of title 15 of the Loui-siana Revised Statutes which provide for the powers and duties of the

We do not here attempt to outline the procedures to be taken in a case inwhich a person appears without counsel for trial. All we decide here is that therecord does not support a conclusion that defendant expressly or implicitly waivedhis right to the assistance of counsel.

Id. at 793 n.10.72. 103 S. Ct. 1610 (1983).73. Slappy v. Morris, 649 F.2d 718 (9th Cir. 1981).74. 103 S. Ct. at 1617 (quoting Slappy v. Morris, 649 F.2d 718, 720 (9th Cir. 1981)).75. Justices Blackmun, Brennan, Marshall, and Stevens all objected to the inclusion

of this language in the majority opinion. Id. at 1620-21, 1625.

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judicial district indigent defender boards 6 and their funding," respectively.

NOTICE OF CONFESSION-ARTICLE 768

In State v. Billiot,7" the prosecution offered an inculpatory statementagainst the defendant without giving the advance notice required by arti-

76. LA. R.S. 15:145(A), (B)(1) (1981), as amended by 1983 La. Acts, No. 16, § 1.Subsections 145(A) and (B)(l) now provide:

A. Each district board shall maintain a current panel of volunteer attorneyslicensed to practice law in this state and shall additionally maintain a currentpanel of nonvolunteer attorneys under the age of fifty-five licensed to practicelaw in this state and residing in the judicial district. The panel of nonvolunteerattorneys shall not include any attorney who has been licensed to practice in thisstate for thirty or more years.

B. Each district board shall select one of the following procedures or any com-bination thereof for providing counsel for indigent defendants:

(1) Appointment by the court from a list provided by the district board ofvolunteer attorneys licensed to practice law in this state. In the event of an inade-quate number of volunteer attorneys, appointment shall be from a list providedby the district board of nonvolunteer attorneys as provided in Subsection A ofthis Section. The court may delegate appointing power to the district board.

All appointments shall be on a successive basis. Deviations from the panel listshall be permitted only to comply with Article 512 of the Code of Criminal Pro:cedure and in exceptional circumstances upon approval of the district board.

77. LA. R.S. 15:146(B) (1981), as amended by 1983 La. Acts, No. 649, § 1. Subsection146(B) now provides:

B. There shall be remitted to the district indigent defender fund the followingsums, which shall be taxed as special costs by every court of original jurisdictionin this state, except mayor's courts in municipalities having a population of lessthan four thousand and in the town of Jonesville which are hereby exemptedfrom such taxation and remittance, in addition to all other fines, costs, or forfeitureslawfully imposed:

(1) The sum of four and one-half dollars for each misdemeanor violation ofstate law or parish or municipal ordinance, other than parking violations, in everycourt of original jurisdiction located within the judicial district where a defendantis convicted after a plea of guilty or a trial or forfeits bond. Upon the recommen-dation of the district board this sum may be increased to not more than ten dollarsby a majority vote of the judges of courts of original criminal jurisdiction withinthe district. In any district with a population which exceeds two hundred thou-sand according to the most recent United States census, and in the EighteenthJudicial District, upon the recommendations of the district board, this sum maybe increased to not more than fifteen dollars by a majority vote of the judgesof courts of original criminal jurisdiction within the district.

(2) The sum of ten dollars for each felony offense in every court of originaljurisdiction in this state where the defendant is convicted after trial or after aplea of guilty or forfeits bond.

Such amounts shall be remitted by the respective recipients thereof to the judicialdistrict indigent defender fund monthly by the tenth day of the succeeding month.

78. 421 So. 2d 864 (La. 1982). The court was comprised of Chief Justice Dixon, AssociateJustices Calogero, Dennis, and Watson, and Judges Byrnes, Ward, and Williams of thefourth circuit as Associate Justices Pro Tempore.

DEVELOPMENTS IN THE LA W, 1982-1983

cle 768 of the Code of Criminal Procedure. 7 The defendant was chargedwith first degree murder and was convicted of second degree murder. Ar-ticle 768 was designed as a part of a reorganization of the Louisiana lawconcerning reference to confessions and inculpatory statements in open-ing statements.80 The intention was to avoid surprise, to allow adequatetime for preparation of a defense, and to prohibit reference to confes-sions and inculpatory statements in opening statements.8 However, afterthe adoption of the Code of Criminal Procedure in 1966, article 716 ofthe Code of Criminal Parocedure2 was added in 1977 to provide fordiscovery of defendant's statements. This change was reflected in article768 by a 1982 amendment,83 and there are now three exceptions to thenotice requirement: (1) if the defendant has been granted pretrial discoveryof the statement, (2) if the statement is one against interest,' or (3) ifthe statement is a part of the res gestae. In Billiot, the Louisiana SupremeCourt disagreed with the finding of the trial court that the statement waspart of the res gestae," but held that, under the circumstances, the errorwas harmless since defendant could not explain what he would have donedifferently in presenting a defense had he known of the presecutor's in-

79. Article 768 provides:Unless the defendant has been granted pretrial discovery, if the state intends

to introduce a confession or inculpatory statement in evidence, it shall so advisethe defendant in writing prior to beginning the state's opening statement. If itfails to do so a confession or inculpatory statement shall not be admissible inevidence.

80. See LA. CODE CRIM. P. art. 769, comments (b), (c).81. State v. Thomason, 353 So. 2d 235 (La. 1977); State v. Turner, 337 So. 2d 455

(La. 1976).82. Article 716 provides:

A. Upon motion of the defendant, the court shall order the district attorneyto permit or authorize the defendant to inspect and copy, photograph or other-wise reproduce any relevant written or recorded confession or statement of anynature, including recorded testimony before a grand jury, or copy thereof, ofthe defendant in the possession, custody, control, or knowledge of the districtattorney.

B. Upon motion of the defendant, the court shall order the district attorneyto inform the defendant of the existence, but not the contents, of any oral con-fession or statement of any nature, made by the defendant, which the districtattorney intends to offer in evidence at the trial, with the information as to when,where and to whom such oral confession or statement was made.

C. Upon motion of the defendant, the court shall order the district attorneyto inform the defendant of the substance of any oral statement which the stateintends to offer in evidence made by the defendant, whether before or after ar-rest, in response to interrogation by any person then known to the defendantto be a law enforcement officer.

83. 1982 La. Acts, No. 735, § 1.84. 421 So. 2d at 867.85. "To constitute res gestae the circumstances and declarations must be necessary in-

cidents of the criminal act, or immediate concomitants of it, or form in conjunction withit one continuous transaction." LA. R.S. 15:448 (1981).

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tention to offer the inculpatory statement. In addition, all of the otherevidence indicated the defendant's overwhelming guilt." With the availabil-ity of discovery this notice requirement has lost much of its originalsignificance, and this writer believes the more appropriate procedure isto require the accused to use the very adequate provisions of article 716rather than to rely upon the notice provision.

WITNESSES

Although article 738 of the Louisiana Code of Criminal Procedure87

makes no specific reference to the location of witnesses who may be sum-moned at the expense of the parish, the Louisiana Supreme Court in Statev. McCabe88 held that the article applies only to witnesses subpoenaedfrom within the state. Therefore, in order to compel the attendance ofwitnesses located in other states, articles 741-745 of the Code of CriminalProcedure, which follow the Uniform Act to Secure the Attendance ofWitnesses from without a state in criminal proceedings (Uniform Act),8

must be utilized. The importance of this distinction is that the right toa subpoena under Article 738 is limited only by number," while the rightunder the Uniform Act is subject to the requirement that a defendantshow that the requested witness is a material witness.' The Uniform Actthen places discretion in the trial judge to issue a certificate to the ap-propriate court of another state requesting that court to compel the par-ticular witness to appear in this state for the purpose of testifying.2 InMcCabe, the defendant simply attempted to obtain the witnesses underthe wrong article of the Code of Criminal Procedure and thus failed tomake the necessary showing of materiality required by article 741. Forthat reason the supreme court found no error in the refusal of the trialjudge to issue the required statutory certificate. The result is obviouslycorrect; counsel must use the proper tool for the specific task.

86. Justices Calogero and Watson concurred. Justice Dennis found that the error wasnot harmless since the inculpatory statement was a critical piece of evidence. 421 So. 2dat 869 (Dennis, J., dissenting).

87. Article 738 provides: "At a trial on hearing, each defendant in a misdemeanorcase shall be allowed to summon six witnesses at the expense of the parish, and in a felonycase twelve witnesses. A defendant.shall have the right of compulsory process for additionalwitnesses at his own expense."

88. 420 So. 2d 955 (La. 1982). The court was comprised of Chief Justice Dixon, Associate

Justices Blanche, Lemmon, and Marcus, and Judges Byrnes and Williams of the fourthcircuit as Associate Justices Pro Tempore.

89. 11 U.L.A. 5-31 (1936).90. Each defendant may summon respectively, six and twelve witnesses in a misde-

meanor or felony case. LA. CODE CRIM. P. art. 738.91. Article 741 of the Code of Criminal Procedure provides in part: "If a person

. . . is a material witness . . . a judge may issue a certificate ... "

92. LA. CODE CRIM. P. art. 741.

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The question of the right of a defendant to compel the victim ofthe charged crime to submit to a pretrial interview was presented to thecourt in an unusual manner this term. In State v. Smith, 9" the defendantclaimed that his right to full voir dire examination guaranteed by the Loui-siana Constitution ' had been abridged, arguing that he could not in-telligently conduct the voir dire examination and properly exercise peremp-tory challenges and request challenges for cause without interviews withthe victim and her husband. Treating the argument as novel but un-founded, the Louisiana Supreme Court held that the right to voir direexamination is a trial right only, and does not create any right todiscovery.95 The right to full voir dire examination under the constitu-tion, said the court, is designed to afford the defendant wide latitudein questioning prospective jurors in order that the defendant may in-telligently exercise the substantial right to exercise peremptory challengesand challenges for cause."6 How the accused is to obtain the knowledgenecessary to formulate the proper questions was not answered by the courtas it held that the constitutional right cannot be extended to compel state'switnesses to submit to pretrial interviews. Perhaps the Court should re-examine its prior holdings to the effect that the decision to speak withdefense counsel before trial rests solely with a witness.97 One might wellwonder whether the defendant can properly exercise the right to preparea defense, guaranteed by both the state98 and federal constitutions, 99 undersuch a limitation. 00

PUBLIC TRIAL

In State v. Birdsong,'°' the Louisiana Supreme Court took the op-portunity to review under its supervisory jurisdiction the denial by thetrial judge of a motion for a closure order in a hearing on a motionto suppress in a capital case.' A similar issue had been presented tothe United States Supreme Court in Gannett Co. v. DePasquale,'°" where

93. 430 So. 2d 31 (La. 1983).94. LA. CONST. art. 1, § 17.95. State v. Straughter, 406 So. 2d 221 (La. 1981); State v. Holmes, 347 So. 2d 221

(La. 1977).96. 430 So. 2d at 35.97. State v. Harris, 367 So. 2d 322 (La. 1979); State v. Hammler, 312 So. 2d 306

(La. 1975) (state may not deny defense access to witnesses).98. LA. CoNsT. art. 1, § 16.99. U.S. CoNsT. amend. VI; Washington v. Texas, 388 U.S. 14 (1967).

100. 430 So. 2d at 35. It should be pointed out that the victim refused the request ofboth the trial judge and the prosecutor to testify.

101. 422 So. 2d 1135 (La. 1982).102. Justice Lemmon concurred, 425 So. 2d 1266 (La. 1983), and Chief Justice Dixon,

and Justices Calogero and Dennis dissented.103. 443 U.S. 368 (1979). See also Richmond Newspapers, Inc. v. Virginia, 448 U.S.

555 (1980); State v. McDonald, 404 So. 2d 889, 894 n.5 (La. 1980).

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LOUISIANA LAW REVIEW

the defendants, the prosecutor, and the trial judge all agreed that theclosure of the pretrial suppression hearing was necessary to protect thedefendant's right to a fair trial. The closure in that case was objectedto by the press. The Court in DePasquale held that a defendant doesnot have a sixth amendment constitutional right to compel a privatehearing.'0 4 However, the Supreme Court did agree that there are certaincircumstances in which the accused's right to a fair trial can be protectedand guaranteed only by closing a pretrial hearing. What the circumstancesmight be was left for future determination.

In Birdsong, Justice Marcus first noted that it is appropriate to re-quire an accused to show actual prejudice resulting from the denial ofa closed pretrial suppression hearing when the matter comes before thecourt on appeal, as the court had previously held.' °5 On review prior totrial, as in this case,' °6 however, it is necessary only to show a "reasonablelikelihood of substantial prejudice to his right to a fair trial by thedissemination of his confession, if proven inadmissible, throughout thecommunity." 0 7 Indicating that the court should be overly cautious whenconsidering the constitutional rights of a defendant charged with a capitaloffense, the plurality opinion then states: "Defendant's right to a fairtrial can be protected from the adverse effects of pretrial publicity bysimply closing the suppression hearing to the public and press who donot have an enforceable right to be present."'0 8

Concurring in a very helpful opinion,' 9 Justice Lemmon set forthhis belief that the trial judge should first exhaust other available meansof protecting the rights of an accused, but should have available, ifnecessary, the authority to close a suppression hearing should he find thisto be necessary or effective. Justice Lemmon stated that he would havethe record affirmatively show the judge's reasons for utilizing the closurein lieu of other alternatives and recommended that the trial judge con-sider the following as alternatives: continuance, change of venue, individualvoir dire of jurors and voluntary cooperation of the media.

Only Justice Dennis filed a dissenting opinion,'' 0 stating his beliefthat the trial judge may under no circumstances bar the public from anypretrial hearing because of the guarantee in the Louisiana Constitution

104. 443 U.S. at 382. The Court also held that the sixth amendment right to a publictrial belongs only to the criminal defendant and not to the public or press.

105. State v. McDonald, 404 So. 2d 889 (La. 1980); State v. Kent, 391 So. 2d 429 (La.1980)."

106. This case came before the court on a supervisory writ granted before trial. Statev. Birdsong, 416 So. 2d 936 (La. 1982).

107. Birdsong, 422 So. 2d at 1138.108. Id. at 1139.109. State v. Birdsong, 425 So. 2d 1266 (La. 1983) (Lemmon, J., concurring).110. 422 So. 2d at 1139 (Dennis, J., dissenting).

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DEVELOPMENTS IN THE LA W, 1982-1983

that "[aill courts shall be open.""' There seems to be little basis for theposition urged by Justice Dennis. ' 2 The present status of the law in thisstate is that closure is an available tool for the trial judge where it isnecessary to protect the rights of an accused at a pretrial suppression hear-ing, but the prudent trial judge will use the closure device only as a lastpractical resort after first examining the other available alternatives andmaking a decision of record that none of these alternatives will adequatelyprotect the constitutional rights of the accused." 3 Only at that point shoulda pretrial suppression hearing be closed and the press and the public beexcluded, and this device should certainly be considered as the exceptionaland unusual situation rather than the usual and customary method ofconducting such hearings.

RIGHT TO JURY TRIAL

There is no doubt that when two or more charges are joined, it isthe aggregate punishment which may be imposed which determines whetherthe accused possesses a right to trial by jury."' Should the total possible

Ill. LA. CONST. art. 1, § 22.112. Justice Lemmon commented: "In my opinion section 22's guarantee of open courts

primarily refers to availability to litigants of adequate remedy by legal procedures." 425So. 2d at 1266 n.2 (Lemmon, J., concurring).

113. Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1982), established thefollowing requirements before a pretrial closure is ordered:

1. Closure is necessary to prevent a serious and imminent threat to the ad-ministration of justice;

2. No alternatives are available, other than change of venue, which would pro-tect a defendant's right to a fair trial; and

3. Closure would be effective in protecting the rights of the accused, withoutbeing broader than necessary to accomplish this purpose.

Id. at 3. The court also established the following safeguards:(1) Notice must be given to at least one representative of the local news media

when a motion for closure is filed and when it is -heard by the court. See Stateex rel. Miami Herald Publishing Co. v. McIntosh, 340 So. 2d 904, 912 (Fla. 1977)(Sundberg, J., concurring).

(2) Those seeking closure have the burden of producing evidence and provingby a greater weight of the evidence that closure is necessary, the presumptionbeing that a pretrial hearing should be an open one.

(3) The news media have no first amendment right to attend the pretrial hear-ing as long as when closure is ordered, the transcript of the hearing is made availableto the news media at a specified future time, when the danger of prejudice willbe dissipated (for example, after the trial jury is sequestered).

(4) Where possible, the court should exclude the contents of a confession orof a wiretap, or the nature of the evidence seized, when the issues involved relateto the manner in which the prosecution obtained this material.

(5) The trial judge shall make findings of fact and conclusions of law so thatthe reviewing court will have the benefit of his reasoning in granting or denyingclosure.

Id. at 8-9.114. State v. McCarroll, 337 So. 2d 475 (La. 1976); see Sullivan, supra note 54, at 386.

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punishment exceed six months imprisonment, the accused is entitled totrial by jury. " ' This apparently simple and innocuous little rule has createdpractical problems in this state. It is very undesirable to have a jury trial,with the attendant delay and expense, in every situation in which the ag-gregate of minor charges arising out of an incident might total to morethan the triggering amount of six months; yet to try each one of theseminor charges separately means in many cases that the same witnessesmust present the same evidence several different times at great loss oftime to all concerned and, of course, with substantial expense. The pros-ecutor frequently can avoid this problem only by trying an accused onless than the proper number of charges, and this solution certainly doesnot seem to be a desirable answer to the problem.

This year the legislature attempted another solution by creating a newarticle of the Code of Criminal Procedure '6 providing that where twoor more misdemeanors are joined the maximum total penalty that maybe imposed shall not exceed six months or a fine of more than five hun-dred dollars or both. The legislation is an obvious attempt to solve theproblem by making it impossible for the defendant to have a right totrial by jury in the situation in which misdemeanors are joined by theprosecutor in the same information or indictment. The rationale, of course,is that the accused is not entitled to trial by jury on any individual charge,the penalty being under the triggering amount, and therefore should notbe entitled to trial by jury simply because the procedural device ofjoinder" 7 is used for purposes of efficiency and economy in the trial pro-cess. For the time being, the question must remain open whether this newarticle will affect the defendant moving to consolidate charges separatelybrought where the aggregate penalty would entitle the accused to a jurytrial. State v. Comeaux"' pointed out that where defendant moves to con-

115. Duncan v. Louisiana, 391 U.S. 145 (1968); State v. Nettleton, 367 So. 2d 755 (La.1981). Article 779(A) of the Code of Criminal Procedure provides: "A defendant chargedwith a misdemeanor in which the punishment may be a fine in excess of five hundred dollarsor imprisonment for more than six months shall be tried by a jury of six jurors, all ofwhom must concur to render a verdict."

116. "Whenever two or more misdemeanors are joined in accordance with Article 493in the same indictment or information, the maximum aggregate penalty that may be im-posed for the misdemeanors shall not exceed imprisonment for more than six months ora fine of more than five hundred dollars, or both." LA. CODE CRIM. P. art. 493.1, addedby 1983 La. Acts, No. 149, § I (effective August 30, 1983).

117. Two or more offenses may be charged in the same indictment or informationin a separate count for each offense if the offenses charged, whether feloniesor misdemeanors, are of the same or similar character or are based on the sameact or transaction or on two or more acts or transactions connected together orconstituting parts of a common scheme or plan; provided that the offenses joinedmust be triable by the same mode of trial.

LA. CODE Can, . P. art. 493.118. 408 So. 2d 1099 (La. 1981); see Sullivan, supra note 54, at 387.

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1983] DEVELOPMENTS IN THE LA W, 1982-1983

solidate, the trial court is under a duty to order the consolidation unlessthe state shows a "legitimate prosecutorial end in opposing consoli-dation."" 19 Under article 706 of the Code of Criminal Procedure,' 20

the consolidation article, the procedure after consolidation "shall be thesame as if the prosecution were under a single indictment." Since thenew article 493.1 relates only to penalty and it is only as a result of thepenalty that there is no right to jury trial, it would seem that article 706would not in an appropriate case compel the court to hold that thereis no right to trial by jury after consolidation where the aggregate penaltyjustifies a jury trial."'

JURY CHALLENGES

In the 1983 regular session, the legislature changed the method oftendering jurors.'22 Under the prior law, after the voir dire examination,prospective jurors were to be tendered first to the state to be acceptedor challenged, and if accepted, then tendered to the defendant for accept-ance or challenge. Under the amendment, the trial courts are no longerrequired to use this one system but may provide by local rule for a systemof "simultaneous exercise" of peremptory challenges.' 23

Also in this session, the legislature made a significant change'24 inthe number of peremptory challenges by reducing the number availablein trials of capital cases and crimes punishable only by imprisonment athard labor from twelve to eight.'25 For all other cases, six challenges were

119. 408 So. 2d at 1105.120. Article 706 provides:

Upon motion of a defendant, or of all defendants if there are more than one,the court may order two or more indictments consolidated for trial if the offensesand the defendants, if there are more than one, could have been joined in a singleindictment. The procedure thereafter shall be the same as if the prosecution wereunder a single indictment.

121. It must be remembered, however, that the prosecution may dismiss and rechargein a joined form. LA. CODE CRIM. P. art. 706, comment (b).

122. LA. CODE CRIM. P. art. 788, 1983 La. Acts, No. 603, § I (effective August 30,1983).

123. The amended version of article 788 of the Code of Criminal Procedure, see supranote 122, provides:

After the examination provided by Article 786, a prospective juror may betendered first to the state, which shall accept or challenge him. If the state ac-cepts the prospective juror, he shall be tendered to the defendant, who shall ac-cept or challenge him. When a prospective juror is accepted by the state andthe defendant, he shall be sworn immediately as a juror. This Article is subjectto the provisions of Articles 795 and 796.

If the court does not require tendering of jurors, it shall by local rule providefor a system of simultaneous exercise of challenges.

124. LA. CODE CRIM. P. art. 799, 1983 La. Acts, No. 495, § I (effective August 30, 1983).125. The amended version of article 799 of the Code of Criminal Procedure, see supra

note 124, provides: "In trials of offenses punishable by death or necessarily by imprison-

LOUISIANA LAW REVIEW [Vol. 44

retained. It should be noted also that the system of giving the prosecu-tion the same number of challenges as each defendant was retained. '26

Under the past practice in Louisiana, a defendant was severely limitedin objecting to the trial court's refusal to sustain his challenge for causebecause of the statutory requirement that such an objection could be madeonly when all of the peremptory challenges available to the accused hadbeen exhausted during the voir dire examination.'2 7 The theory of the rulewas that defendant could show no prejudice from a ruling on the challengefor cause unless the challenged juror could not have been excused throughthe exercise of a peremptory challenge. The rule, of course, failed to fullyappreciate the effect of the tendering doctrine in article 788 of the Codeof Criminal Procedure, requiring that peremptory challenges be exercisedindividually and per tendered juror rather than in one group. Thelegislature finally abolished this rule in the 1983 regular session,'28 by re-quiring only. that a contemporaneous objection be made to the action ofthe court.' 29 The question of prejudice can hardly be ignored, however.Both trial courts and reviewing courts have displayed a substantial degreeof reluctance to grant challenges for cause, and it is in this context thata defendant must make the difficult choice whether to gamble either onthe lack of prejudice of the particular juror or on the fact that reliefmay be granted by a reviewing court based upon the denial of the challengefor cause, or whether, as a matter of sound trial practice, when in doubt,

ment at hard labor, each defendant shall have eight peremptory challenges, and the stateeight for each defendant. In all other cases, each defendant shall have six peremptorychallenges, and the state six for each defendant."

126. Cf. FED. R. CRIM. P. 24(b). Rule 24(b) provides:If the offense charged is punishable by death, each side is entitled to 20 peremp-

tory challenges. If the offense charged is punishable by imprisonment for morethan one year, the government is entitled to 6 peremptory challenges and the defen-dant or defendants jointly to 10 peremptory challenges. If the offense chargedis punishable by imprisonment for not more than one year or by fine or both,each side is entitled to 3 peremptory challenges. If there is more than one defen-dant, the court may allow the defendants additional peremptory challenges andpermit them to be exercised separately or jointly.

127. State v. Marshall, 410 So. 2d 1116 (La. 1982); State v. Mattheson, 407 So. 2d1150 (La. 1981).

128. LA. CODE CRIM. P. art. 800, as amended by 1983 La. Acts, No. 181, § I (effectiveAugust 30, 1983).

129. The amended version of article 800 of the Code of Criminal Procedure, see supranote 128, provides:

A defendant may not assign as error a ruling refusing to sustain a challengefor cause made by him unless an objection thereto is made at the time of theruling. The nature of the objection and grounds therefor shall be stated at thetime of objection.

The erroneous allowance to the state of a challenge for cause does not affordthe defendant a ground for complaint, unless the effect of such ruling is the exer-cise by the state of more peremptory challenges than it is entitled to by law.

DEVELOPMENTS IN THE LA W, 1982-1983

to use an available peremptory challenge.'3 0 The choice for defense counselis indeed a difficult one and probably the amendment to the Code ofCriminal Procedure does little to assist in making the proper decision.

INSTRUCTIONS

The question of the propriety of charging a jury as to the penaltyprovisions applicable to the charged crime, and particularly as-to theresponsive verdicts available, was presented to both the Louisiana SupremeCourt and to the Louisiana First Circuit Court of Appeal during thisreporting period. The supreme court in State v. Hooks' addressed a firstdegree murder charge in which one of the allowable responsive verdictsis "guilty of second degree murder."' 3 2 Each of these crimes requires theimposition of a mandatory sentence.' Defense counsel made a timelymotion' 4 requesting the trial judge to charge the jury on the penalty forthe charged crime and all responsive verdicts, but the trial judge deniedthe motion. The supreme court found that the trial court erroneouslydenied the motion but that defense counsel had ample opportunity dur-ing closing argument to explain the penalty provisions, although he failedto take advantage of the opportunity. Thus, under all of the circumstances,the ruling of the trial court was error, but harmless error. The rules carvedout by the Louisiana Supreme Court in this area are basically simple:If the statute imposes a mandatory penalty, then the trial judge must in-form the jury of the penalty if the defendant properly requests a specialwritten charge in accordance with article 807 of the Code of CriminalProcedure. 33 When the statute provides only a range of penalties leaving

130. See generally Sullivan, Developments in the Law, 1980-1981-Criminal Trial Pro-cedure, 42 LA. L. REV. 647, 656-57 (1982) (judicial reluctance to grant challenges for cause).

The number of available peremptory challenges has been reduced by the legislature. Seesupra text accompanying notes 124-26.

131. 421 So. 2d 880 (La. 1982). The court was comprised of Chief Justice Dixon, AssociateJustices Calogero, Dennis, and Watson, and Judges Byrnes, Ward, and Williams of the

fourth circuit as Associate Justices Pro Tempore.132. See LA. CODE CRIM. P. art. 814(A)(1)."133. CRIMINAL CODE: LA. R.S. 14:30, :30.1 (Supp. 1983).

134. The state and the defendant shall have the right before argument to submitto the court special written charges for the jury. Such charges may be received

by the court in its discretion after argument has begun. The party submittingthe charges shall furnish a copy of the charges to the other party when the chargesare submitted to the court.

A requested special charge shall be given by the court if it does not require

qualification, limitation, or explanation, and if it is wholly correct and pertinent.

It need not be given if it is included in the general charge or in another specialcharge to be given.

LA. CODE CRIM. P. art. 807. This motion was not in writing as required but this was not,as the supreme court recognized, ground for denial of the motion. 421 So. 2d at 887.

135. Counsel may also argue the penalty to the jury. State v. Washington, 367 So. 2d

4 (La. 1978); State v. Prater, 337 So. 2d 1107 (La. 1976).

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LOUISIANA LAW REVIEW

the specific sentence to the discretion of the trial judge, the trial judgeis not required to charge the jury as to the authorized statutory sentence,but may do so as a matter of discretion'3 6 if the defendant submits atimely and proper request for a special written charge on this subject.' 37

Against this background, the result in Hooks appears to be quite correctand under the circumstances perfectly fair. However, it would seem moreappropriate for information concerning the penalty in the mandatorysentence situation to be restricted to the court's charge so that the matteris kept in proper perspective and the trial does not become simply oneas to whether or not a particular statutory penalty is proper for certainconduct. Certainly it seems desirable to inform the jury as to the relativeimpact of responsive verdicts as this penalty-effect is probably the greatestsingle reason for selection of a particular responsive verdict by a con-scientious jury.

In State v. Napoli, 3 ' the first circuit once again shot down a defenseattempt to define all crimes where there is a mandatory minimum sentenceas providing mandatory sentences.' 39 The crimes in question'" were inthe familiar "not less than" and "not more than" formula making thespecific sentence discretionary with the trial judge. The only unique por-tion of the statutory sentence for each crime was a restriction on suspen-sion of sentence, probation, and parole."' Although it chose not to discussthe point, the court quite properly did not feel that the special sentencingprovisions made the sentences "mandatory" for the purpose of inform-ing the jury as to the appropriate penalties.

May the trial court on its own motion give an additional instructionto the jury after the jury retires and is deliberating? The Louisiana SupremeCourt answered this question in the negative in State v. Parker,'"2 eventhough the action of the trial court in this particular case was found not

136. State v. Carthan, 377 So. 2d 308 (La. 1979); State v. Chatman, 337 So. 2d 1106(La. 1976); see State v. Prater, 337 So. 2d 1107, 1109 (La. 1976) (Tate, J., concurring).

137. This is not to say that there are not certain unexplained inconsistencies in thejurisprudence. See State v. Parish, 405 So. 2d 1080 (La. 1981); State v. Blackwell, 298So. 2d 798 (La. 1974).

138. 428 So. 2d 957 (La. App. 1st Cir. 1983).139. State v. Bell, 377 So. 2d 275 (La. 1979).140. LA. R.S. 14:42.1 on forcible rape provides in part: "Whoever commits the crime

of forcible rape shall be imprisoned at hard labor for not less than two nor more thanforty years. At least two years of the sentence imposed shall be without benefit of proba-tion, parole, or suspension of sentence." LA. R.S. 14:89.1 on aggravated crime against natureprovides in part: "Whoever commits the crime of aggravated crime against nature shallbe imprisoned at hard labor for not less than three nor more than fifteen years, such prisonsentence to be without benefit of suspension of sentence, probation or parole."

141. See supra note 140.142. 425 So. 2d 683 (La. 1982).

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DEVELOPMENTS IN THE LA W, 1982-1983

to be prejudicial. Article 808 of the Code of Criminal Procedure' 3

authorizes the court to give an additional charge to the jury duringdeliberations but only upon the request of a member of the jury. Once therequest is made the court must charge the jury further in the courtroomin the presence of the defendant, his counsel, and the district attorney,and may do so verbally. The comment to article 808144 specificallypoints out that the article does not authorize the court to recall thejurors to give them additional or corrective instructions except with theconsent of all of the parties. Here, the defense attorney objected to theprocedure, but the objection was overruled. Although the lack of astatutory authority for the court to give additional instructions on its ownmotion proved not to have any adverse effects in this particular case,this writer believes that the principle is indeed a very dangerous one. Toslavishly adhere to the comment and prevent a trial judge from correct-ing an error' at a time when it can be corrected seems to run counterto all of the principles of modern judicial administration as well as thoseof the administration of justice.' 6 It seems unreasonable to place theburden upon counsel to agree to something that may in fact adverselyaffect the rights of the party, and certainly this possibility cannot be judgedaccurately at the time when consent is requested. The responsibility is thatof the trial judge to assure that the jury is properly charged. It does notseem at all unreasonable to conclude-that this responsibility includes thepower to assure that the jury receives accurate instructions, and that ifan error is discovered at a time when it may easily be corrected, the judgemay do so in the simplest manner possible by recalling the jury and giv-ing them the correct instruction.

Once again, this year the Louisiana Supreme Court was faced withthe problem of applying the contemporaneous objection rule'4 7 to the in-

143. Article 808 provides:If the jury or any member thereof, after having retired to deliberate upon the

verdict, desires further charges, the officer in charge shall bring the jury intothe courtroom, and the court shall in the presence of the defendant, his counsel,and the district attorney, further charge the jury. The further charge may be verbal.

144. LA. CODE CRIM. P. art. 808, comment (c).145. Here the error was the omission of a section of the charge defining second degree

murder. The accused was convicted of first degree murder. The court also noted that thegiven charge was more favorable to the accused than the correct one. 425 So. 2d at 697.

146. The principle that correctable errors should be rectified at trial if possible is ex-emplified by article 841 of the Code of Criminal Procedure.

147. The court shall charge the jury after the presentation of all evidence andarguments. The court shall reduce its charge to writing if it is requested to doso by either a defendant or the state prior to the swearing of the first witnessat the trial on the merits. The court's written charge shall be read to the jury.The court shall deliver a copy thereof to the defendant and to the state priorto reading it to the jury.

A party may not assign as error the giving or failure to give a jury charge

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LOUISIANA LA W REVIEW

struction area. The court has emphasized the contemporaneous objectionrule'48 in recent years at all points of the criminal trial. Primarily, therule is designed to alert the trial judge at the time an error takes placeso that corrective action may be taken immediately, thus avoiding laterproblems perhaps including retrials. The rule is also designed to prohibitthe old practice of searching the record after conviction to locate anypossible errors for use on appeal. It is just as true in criminal trials aselsewhere that one cannot have one's cake and eat it too, so that onemust either promptly and properly object when an error takes place orwaive it. As with most things in life, of course, there is an exceptionto the operation of the contemporaneous objection rule in the instructionarea. The court has held' 49 that fundamentally erroneous misstatementsof the essential elements of the charged offense will require a reversaldespite the failure to make a contemporaneous objection in the trial court.The exception, to this writer at least, seems to be reasonable since a fun-damental error in the statement of the law which the jury is requiredto apply should make it quite impossible for a fair and accurate resultto be expected from the jury. However, all courts have been wary ofthe use of this principle by counsel for trial strategy purposes. The fearis that counsel may knowingly allow such a basically defective charge tobe given to the jury as a tactical gamble that the jury may bring in anot guilty verdict, with the knowledge that this fundamental error maystill be appealed should disaster occur. Because of this possibility the defen-dant has the burden of convincing the reviewing court that the failureto object was excusable and not simply a part of counsel's trial tactics.

In State v. Mart,"' the trial court gave a clearly erroneous instruc-tion defining the elements of manslaughter which was a responsive ver-dict to the charge of second degree murder.'' Defense counsel, however,failed to object to the instruction, a most unfortunate lapse. As JusticeLemmon put it: "If counsel had objected to this instruction and the trialjudge had failed to correct the error, we would be required to reversedefendant's conviction."' The court held that the defendant did not meet

or any portion thereof unless an objection thereof is made before the jury retiresor within such time as the court may reasonably cure the alleged error. The natureof the objection and grounds therefor shall be stated at the time of objection.The court shall give the party an opportunity to make the objection out of thepresence of the jury.

LA. CODE CRIM. P. art 801. The second paragraph was added by Act 458 of 1982. SeeSullivan, supra note 54, at 396-98.

148. See LA. CODE CRIM. P. art. 841.149. State v. Williamson, 389 So. 2d 1328 (La. 1980).150. 419 So. 2d 1216 (La. 1982). The court was comprised of Chief Justice Dixon,

Associate Justices Calogero, Dennis, Lemmon, and Watson, and Judges Ciaccio of the fourthcircuit and Gaudin of the fifth circuit as Associate Justices Pro Tempore.

151. LA. CODE CRIM. P. art. 814(A)(3).

152. 419 So. 2d at 1218.

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19831 DEVELOPMENTS IN THE LA W, 1982-1983

the burden of convincing the court that the failure was excusable, andfurther emphasized that the erroneous instruction related only to a respon-sive verdict and not to the offense charged. On this basis relief was denied.

The holding should serve as a warning to all counsel to scrutinizecharges in the light of the contemporaneous objection rule, rather thantraditional principles of trial tactics, and particular attention should bepaid to definitions of responsive crimes since it is apparent that the supremecourt will look upon these instructions quite differently. The clear solu-tion to this type of problem, in this writer's opinion, is the procedureestablished for the federal courts by rule 30 of the Federal Rules ofCriminal Procedure." A meeting between counsel and the trial judgewould force an early consideration of any problems in the charge to begiven to the jury and would pinpoint the time when objections must bemade. Trial judges should consider requiring an instruction conferenceeven though there is no current Louisiana statutory authority since to doso seems clearly within the inherent power of the trial judge to controlthe proceedings in the trial.

JURY DELIBERATIONS

In State v. Perkins,'5 4 a written inculpatory statement by the defen-dant was introduced into evidence, and at the request of the jury, thestatement was sent into the jury room during deliberations.'" The Loui-siana Supreme Court held that the sending of this written statement tothe jury deliberation room constituted reversible error.' 6 Article 793 ofthe Code of Criminal Procedure' 7 prohibits the jury from having available

153. Rule 30 provides:At the close of the evidence or at such earlier time during the trial as the court

reasonably directs, any party may file written requests that the court instruct thejury on the law as set forth in the requests. At the same time copies of suchrequests shall be furnished to adverse parties. The court shall inform counsel ofits proposed action upon the requests prior to their arguments to the jury, butthe court shall instruct the jury after the arguments are completed. No party mayassign as error any portion of the charge or omission therefrom unless he objectsthereto before the jury retires to consider its verdict, stating distinctly the matterto which he objects and the grounds of his objection. Opportunity shall be givento make the objection out of the hearing of the jury and, on request of anyparty, out of the presence of the jury.

See Sullivan, supra note 54, at 396.154. 423 So. 2d 1103 (La. 1982). The court was comprised of Chief Justice Dixon,

Associate Justices Calogero, Dennis, and Watson, and Judges Byrnes, Ward, and Williamsof the fourth circuit as Associate Justices Pro Tempore.

155. Defense attorney was not present at this time and hence no objection was made.A motion for mistrial was made as soon as possible. Id. at 1109.

156. Id. at 1110. Associate Justice Pro Tempore Byrnes dissented.157. Article 793 provides:

A juror must rely upon his memory in reaching a verdict. He shall not bepermitted to refer to notes or to have access to any written evidence. Testimonyshall not be repeated to the jury. Upon the request of a juror and in the discre-

LOUISIANA LAW REVIEW [Vol. 44

during deliberations written evidence, and the court has construed the pro-vision to mean that the jury may not have access to written evidence forthe sole purpose of assessing its verbal contents.' The article further pro-vides that the juror may have access to any document received in evidencewhen a physical examination of the document itself is required in orderto determine an issue in the case, and this rule is generally construed tomean that the jury may have access to a document for the purpose ofseeing or feeling the document itself or examining the writing or signature,as distinguished from focusing upon the contents of the document." 9 Sincethe court had previously prohibited the sending of a written confessionto the jury room,' 60 it is no surprise that the court in Perkins held thatan inculpatory statement by the defendant presented the danger that un-due weight might be given to the particular statement and should be ex-cluded. In strict compliance with the legislative choice as expressed in ar-ticle 793, the court.found it had little choice but to find that a violationof the statute resulted in reversible error. The wisdom of this legislativepolicy of forcing a jury to rely upon memory and to speculate as to thecontents of documents is highly suspect and deserves maturere-examination.'

6

tion of the court, the jury may take with it or have sent to it any object ordocument received in evidence when a physical examination thereof is requiredto enable the jury to arrive at a verdict.

158. See State v. Passman, 345 So. 2d 874 (La. 1977); State v. Freetime, 303 So. 2d487 (La. 1974).

159. See State v. Freetime, 303 So. 2d 487 (La. 1974).160. See State v. Passman, 345 So. 2d 874 (La. 1977).161. 111 STANDARDS, supra note 43, std. 15-4.1. Standard 15-4.1 provides:

(a) The court in its discretion may permit the jury, upon retiring for delibera-tion, to take to the jury room a copy of the charges against the defendant andexhibits and writings which have been received in evidence, except depositions,and with the consent of both parties copies of instructions previously given.

(b) Among the considerations the court should take into account in makingthis determination are:

(i) whether the material will aid the jury in proper consideration of the case;(ii) whether any party will be unduly prejudiced by submission of the material;

and(iii) whether the material may be subjected to improper use by the jury.

The commentary to this standard states:There is a split of authority on whether written confessions and admissions

should be allowed in the jury room. Some states treat a confession merely asdocumentary evidence and admit it. In other jurisdictions, it has been held errorto send written confessions or admissions to the jury room. In a leading Illinoiscase, the court stated: "It is error to permit the jury to take . . . depositionsor dying declarations. . . . The same rule applies to confessions or other instrumentsof evidence depending for their value on the credibility of the maker." A trialjudge should have the authority to send admissions and confessions to the juryroom, as it will sometimes be appropriate for the jury to give these documentsclose scrutiny.

III id. std. 15-4.1, commentary at 15 & 118 (footnotes omitted) (quoting People v. Spranger,

DEVELOPMENTS IN THE LA W, 1982-1983

State v. Graham 162 presents an interesting discussion of the problemspresented when jurors conduct an experiment during the course of delibera-tions. The experiment dealt with the time required for blood coagulation,a topic with which the court found everyone to be familiar. It was,however, the subject of expert testimony during the course of the trial,and the jurors' experiment tended to corroborate the opinion of the ex-pert witness presented by the prosecution. The court found no error inthis case, believing that there was no reasonable possibility that the ex-periment contributed decisively to the guilty verdict. Although the par-ticular facts in this case clearly support the judgment of the court thatthe experiment was of little importance, they do point up the dangersof jurors basing their decision on material not presented in evidence atthe trial. Doing so effectively bypasses all of the safeguards built intothe system, and the rights of cross-examination and confrontation are ef-fectively denied to the accused. The solution may be found in a strongcharge by the trial judge to the jury to the effect that they are not toparticipate in any experiments and are to base their decision solely uponthe evidence presented in open court.

At what point is a jury "hung"? In State v. Alexander,' 63 after somefive hours of deliberation, the jury returned to the courtroom and in-dicated some disagreement as to whether or not further deliberations wouldaccomplish anything. The trial judge then stated: "I'm not going to enter-tain a hung jury at this time.""' The jury was then excused for furtherdeliberations, and after thirty minutes returned a verdict of guilty on aresponsive verdict. It is noteworthy that defense counsel did not objectat the time to the trial judge's statement, but this was not a factor inthe supreme court's ruling since the trial judge had not based his adversedecision on the contemporaneous objection ground. 6"

Louisiana follows the general rule that the length of jury delibera-tions is a matter within the sound discretion of the trial judge. 66 Withonly one exception,' 7 the prior Louisiana cases'68 have found no errorwhere the jury foreman reports that the jury is deadlocked but the trial

314 Il. 602, 612, 145 N.E. 706, 710 (1924).162. 422 So. 2d 123 (La. 1982).163. 430 So. 2d 621 (La. 1983).164. Id. at 625.165. Id. at 627; see LA. CODE CRIM. P. art. 841.166. See State v. Monroe, 397 So. 2d 1258 (La. 1981); State v. Governor, 331 So. 2d

443 (La. 1976); III Standards, supra note 43, std. 15-4.4(b). Standard 15-4.4(b) providesin part: "If it appears to the court that the jury has been unable to agree, the court mayrequire the jury to continue their deliberations and may give or repeat an instruction asprovided in paragraph (a)."

167. State v. Rodman, 208 La. 523, 23 So. 2d 204 (1945).168. State v. Governor, 331 So. 2d 443 (La. 1976); State v. Knight, 323 So. 2d 765

(La. 1975).

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judge, after further charging the jury, sends them back for further delibera-tion. Although the line many times is a very narrow one between givinga prohibited Allen-type instruction'6 9 and impressing upon the jury theimportance of the case and urging them to come to an agreement, thetrial judge is in a most difficult position and has little choice. To granta mistrial because of a hung jury' 0 means retracing the entire historyof the trial and beginning anew with all of the incident delay and costwhich is involved. Although there may be cases in which a jury mightbe coerced by the language of a trial judge and placed under pressureto reach a verdict, which pressure will result in prejudice to an accused,''Alexander certainly does not present such a case. To inform a jury whichhas deliberated for only five hours in a serious case' that they shouldcontinue their deliberations does not strike one as being unduly prejudicial,but rather as the reasonable exercise of the responsibility that each trialjudge has to attempt to bring a case to a successful conclusion. Givenhalf a chance many juries would seek to avoid the hard responsibilityof reaching a decision, and this tendency is to be guarded against by mak-ing certain that a hung jury is accepted by a trial judge only when itappears the jury is truly incapable of reaching a verdict. The hung juryshould certainly be a rare exception to the usual process of returning ajury verdict.

BAIL

In Louisiana, as in most jurisdictions, arrested defendants have beenreleased on bail of three types: surety posted by a third person, generallya surety company;'" a personal undertaking of the defendant secured bya deposit of cash, etc., in an amount equal to the amount of the bail;' 74

and release on his own recognizance.' 7 ' These devices, with the exception

169. Allen v. United States, 164 U.S. 492 (1896). See Marcus, The Allen Instructionin Criminal Cases: Is the Dynamite Charge About To Be Permanently Defused?, 43 Mo.L. REV. 613, 614 (1978) (describes the absence of judicial reticence in using strong measuresto secure a verdict from a jury). The United States Supreme Court has never withdrawnits endorsement of the Allen instruction. See Allen v. People, 660 P.2d 896 (Colo. 1893);State v. Nicholson, 315 So. 2d 639 (La. 1975).

170. Article 775 of the Code of Criminal Procedure provides in part: "A mistrial maybe ordered, and in a jury case the jury dismissed, when: ...(2) The jury is unable toagree upon a verdict .... "

171. "The jury may be discharged without having agreed upon a verdict if it appearsthat there is no reasonable probability of agreement." III Standards, supra note 43, std.15-4.4(c).

112. The accused was charged with second degree murder. CRIMINAL CODE: LA. R.S.14:30.1 (Supp. 1983).

173. LA. CODE CRIM. P. arts. 323-329.174. LA. CODE CRIM. P. art. 333.175. LA. CODE CRIM. P. art. 336.

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DEVELOPMENTS IN THE LA W, 1982-1983

of the personal recognizance, focus heavily upon the financial ability ofthe accused to post in one form or another valuable security, which ismany times simply unavailable to the indigent. As a result, the bail systemhas drawn strong attack as being highly discriminatory.' 76 Against thisbackground, many efforts have been made to shift away from a strictreliance upon financial security as the sole means of assuring that an ac-cused will appear for the trial-the sole aim of the bail process.'"

In the 1983 regular session, the Louisiana Legislature adopted a newarticle of the Code of Criminal Procedure' authorizing the court to utilizeany condition of release that is "reasonably related" to guaranteeing therequired future appearance of the accused.'" This provision makesavailable to the trial judge an excellent tool for tailoring the bail processto the needs of the individual defendant and the precise situation. Thisseems to be a very desirable provision and will make it possible to reducethe number of persons held in custody where there is no substantial riskof nonappearance in court, but the accused is simply unable to meet thefinancial requirements or is faced by sometimes unduly restrictive viewsas to the granting of release on the basis of own recognizance.

It should be noted that article 325.1 of the Code of CriminalProcedure 8 ' relating to immovable property in another parish which isused as security for bail bond was repealed in the 1983 Regular Session.' 8 'Article 271 of the Code of Criminal Procedure" 2 relating to bail in ex-tradition cases was also amended, as were articles 338183 and 339 of theCode of Criminal Procedure."'

176. See Pugh v. Rainwater, 557 F.2d 1189 (5th Cir. 1977).177. See Federal Bail Reform Act of 1966 § 3(a), 18 U.S.C. § 3146 (1976).178. LA. CODE CRIM. P. art. 336.1, added by 1983 La. Acts, No. 151, § I (effective

August 30, 1983).179. New article 336.1 of the Code of Criminal Procedure, see supra note 178, pro-

vides: "In addition to any other forms of bail provided by law, the court may imposeany condition of release that is reasonably related to assuring the appearance of the defen-dant before the court. Violation of such condition by the defendant shall be consideredas a constructive contempt of court."

180. Before its repeal by Act 256 of 1983 article 325.1 provided:A personal surety who furnishes as security for a bail bond immovable prop-

erty located in another parish in the state shall present to a judge of the parishin which the property is located an assessment certificate, a homestead exemptionwaiver, if applicable, and a mortgage certificate. Prior to presenting the bondto the court having jurisdiction over the offense charged, the bond shall be recordedin the mortgage office of the parish where the immovable property is locatedand recordation shall be evidenced on the mortgage certificate.

181. 1983 La. Acts, No. 256, § I (effective August 30, 1983).182. LA. CODE CRIM. P. art. 271, as amended by 1983 La. Acts, No. 584, § I.183. LA. CODE CRIM. P. art. 338, as amended by 1983 La. Acts, No. 370, § 1.184. LA. CODE CRIM. P. art. 339, as amended by 1983 La. Acts, No. 371, § I.

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